If you have interviewed a job applicant in the past few years, it is almost a guarantee that you have broken the law. Sorry about the coffee stain on your shirt, but yes, unless you are a professional recruiter you have probably asked a question that is considered discriminatory. The basis for these restrictions is to ensure that people are evaluated for the skills, knowledge and attributes necessary for the job, not on preconceived and prejudicial notions.
Many interviewers use chit chat about the person’s family or home life as a way of breaking the ice. After all, it is the usual stuff of social interaction. However, questions about the individual’s personal life are considered to be potentially prejudicial and therefore unfair.
The legal landmines that need to be avoided are any questions about the interviewee’s race, ethnicity, culture, religion, gender, physical disability, sexual orientation, marital status, children, HIV/AIDS status, place of residence, or age.
“But how do I know what I’m getting?” The answer to this reasonable question is twofold:
Firstly, is any of the above information actually relevant to the job? I mean, really, demonstrably relevant, for example, to be a parish priest, religion is pretty central to job performance. In which case, it’s acceptable to ask. While ordinarily asking for ID or a driver’s license may be stepping into the minefield, if the position is for a driver, this is a valid legal requirement of the job.
Secondly, if it is a consideration, can you establish the information you need, without directly asking? The job may involve a lot of travel and you may be concerned that a single parent will not be able to cope with the demands. Frankly, the person’s child-minding arrangements are none of your business, but you are well within your rights to ask if there are any reasons why s/he will not be able to travel extensively, with little notice.
The business may require employees to work on weekends or on public/religious holidays. It is unacceptable to ask the person’s religious beliefs, but you are entitled to ask what days the person is/is not available to work.
Asking the person if s/he intends to marry or have children or making a reference to the fact that they appear to be close to retirement is illegal, but it is fair and valid to ask about their long term career goals and what they feel they have to offer the company.
The job may be very physical or require mobility, so a question as to whether or not the person can lift 50Kg weights is fair but not a question concerning a physical disability.
It is prejudicial to ask if the person has a criminal record, however, if the position is in the financial services industry, then an employer may rightfully ask whether or not the interviewee has been convicted of fraud or theft. The specifics of the crime and direct relation to the trust requirements of the job are central to whether or not it is legal.
The interviewer may not ask if the person is a South African citizen or even where they live. The relevant information here is whether or not the person is allowed to work and live within the country. It is permissible to inform the person that they will be required to provide proof of a work permit or residence permit, should the employer wish to make an offer of employment.
Less cut and dried is what to do should the person volunteer information in the interview. Many people provide personal information quite freely but the wise interviewer moves quickly on from the subject. Keep the focus on the job and its requirements at all times. The best way to do this is by having a job profile and performance standards in writing. Use these to frame your questions and stay away from family and home life.
Key take out: Plan for the interview by being familiar with the job requirements and preparing questions specific to the job in order to stay legal and most importantly, fair.
Author: Janet Askew